Griffiths and Australian Postal Corporation (Compensation)
[2017] AATA 1025
•4 July 2017
Griffiths and Australian Postal Corporation (Compensation) [2017] AATA 1025 (4 July 2017)
Division:GENERAL DIVISION
File Number(s): 2014/6460; 2015/5905
Re:Roslyn Griffiths
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:4 July 2017
Place:Canberra
The reviewable decisions of 3 December 2014 and 12 October 2015 are affirmed.
........................[sgd]................................................
Deputy President Gary Humphries
Catchwords
WORKERS COMPENSATION – psychiatric condition – whether pre-existing condition – borderline personality disorder – depression – whether workplace injuries occurred – held that workplace injury occurred – whether workplace incidents contributed to injury to a significant degree – significant contribution established – whether wilful and false representation made by Applicant to not have had or not previously suffered from similar condition – whether exemption to liability established – wilful and false representations found – exemption to compensation established – decision affirmed.
EVIDENCE – expert evidence – opinion evidence - weight to be given to expert opinion not based on widely-accepted scientific criteria – importance of reasoning leading to opinion – expert assistance must not supplant role of decision-maker.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Anderson and Australian Postal Corporation [2016] AATA 228
JXTZ and Comcare [2017] AATA 880
Kennedy and Comcare [2015] AATA 334
Kennedy v Cordia (Services) LLP [2016] UKSC 6Wiegand v Comcare [2002] FCA 1464
Secondary Materials
American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)
REASONS FOR DECISION
Deputy President Gary Humphries
4 July 2017
Before the Tribunal is an application by Ms Roslyn Griffiths, an employee of the Australian Postal Corporation (Australia Post) since 2011. She seeks merits review of two decisions by her employer to refuse her compensation for a psychological injury or injuries she suffered in respect of her workplace between July 2011 and July 2014.
Ms Griffiths alleges that she was subject to bullying and harassment by other employees of Australia Post at the Riverina Mail Sorting Centre at Wagga Wagga, NSW from the time she started there in July 2011. This conduct culminated in an incident on 26 July 2014 in which she and another employee had a confrontation over the volume of a radio. Her GP issued a medical certificate on 11 August 2014 indicating that she was affected by Bully and Harassment at work place, with a date of injury of 26 July 2014. On 26 August 2014 she lodged a claim for workers compensation for a condition described as anxiety. A determination denying liability for this condition under the Safety, Rehabilitation and Compensation Act 1988 (the Act) was made on 14 October 2014, and affirmed on reconsideration (though for different reasons) on 3 December 2014.
Ms Griffiths made a second application for workers compensation on 13 August 2015, in which she alleged that a series of incidents involving bullying and harassment between 2011 and July 2014 had caused a condition of Anxiety + Depression. On 17 September 2015 Australia Post denied liability for this condition and, following reconsideration, affirmed that decision on 12 October 2015, though, again, for different reasons. It is these decisions which Ms Griffiths has sought to have reviewed by the Tribunal – the decision of 3 December 2014 on her anxiety claim through matter 2014/6460 and the decision on her anxiety and depression claim through matter 2015/5905.
THE ISSUES BEFORE THE TRIBUNAL
Ms Griffiths says that she suffered a psychological condition to which her employment with Australia Post contributed to a significant degree, and that this condition resulted in incapacity or impairment which entitles her to compensation.
Australia Post resists this proposition of compensable injury on several grounds:
·the psychological condition diagnosed in August 2014 was the product of a long-standing psychological illness Ms Griffiths suffered from, most likely a borderline personality disorder, and not of events which occurred in her workplace;
·any condition from which she suffered was not contributed to, to a significant degree, by her employment at Australia Post; and
·if she did suffer from a condition to which her employment contributed to a significant degree, liability for that injury is excluded under s 7(7) of the Act in that, in connection with her employment, she made a wilful and false representation that she had not previously suffered from the disease for which she claimed.
For reasons set out below, the Tribunal does find that Ms Griffiths’ employment contributed, to a significant degree, to the onset of a psychological condition. However, it also finds that this condition does not constitute an injury under the Act by virtue of the operation of s 7(7). Because this finding disposes of her application for review, the Tribunal first sets out its reasoning on that score.
THE OPERATION OF SECTION 7(7)
Ms Griffiths’ psychiatric history was put before the Tribunal in some detail, and in turn was discussed by two psychiatrists and a psychologist who gave live evidence. It is unnecessary to range over that full history at this juncture, but to note only the following episodes in that history, and to observe that the fact that these episodes occurred was not controversial in these proceedings:
·Ms Griffiths suffered postnatal depression following the birth of her third child in 1996.
·She suffered depression, and attempted suicide, following the discovery in 1996 that her husband was transgender and the failure of her marriage.
·Following the moving away of both her son and her partner, she was diagnosed in November 2008 with a major depressive episode.
·In December 2010 she attended Wagga Wagga Base Hospital feeling extremely distressed after her 14-year-old daughter left home. She was subsequently referred to the Community Mental Health Team at Temora for short-term support.
·She was brought to the Wagga Wagga Base hospital in March 2011 following a (possibly accidental) overdose of paracetamol. The hospital’s clinical notes record depressive symptoms …anxiety +++, and that she reports not wanting to wake up.
·A mental health care plan was prepared for her in May 2011, to facilitate her access through Medicare to a psychologist.
In her claim for workers compensation dated 26 August 2014, Ms Griffiths completed an Australia Post form in which she indicated that she suffered from a work-related condition of anxiety, and that she first noticed her illness on 25 July 2014. The form then asked Have you ever had a similar injury/illness? In response, she ticked the box against No. She made a further claim for workers compensation, on 13 August 2015, citing anxiety + depression as the illness claimed for. Again, she answered No to the question Have you ever had a similar injury/illness?
Section 7(7) of the Act provides as follows:
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
The purpose of the provision seems reasonably clear. An employee who is otherwise entitled to compensation for a disease under the Act loses that entitlement if he or she wilfully makes a false representation about not having previously suffered from that disease. A single deliberate misrepresentation in this respect is enough to disqualify the employee from compensation.
There are several elements of the exclusion in s 7(7) which it falls on a respondent seeking to rely on it to demonstrate, on the balance of probabilities: Anderson and Australian Postal Corporation [2016] AATA 228 at [96]. I will now consider those elements, and the present evidence in respect of each, in turn.
A representation
Ms Griffiths completed two forms in which she ticked No to a particular question about previous illness. Notwithstanding the brevity of a tick, it is clear that by completing the forms in this way she was making representations to her employer regarding her medical history. In JXTZ and Comcare [2017] AATA 880 the Tribunal held that a failure on a form to tick boxes related to previous illness did not constitute a misrepresentation under s 7(7) as it found that the evidence was unclear whether the applicant herself had made the omission, but the Tribunal made clear that, if it found that she had, this would have been a sufficient misrepresentation for the subsection to operate.
Purposes connected with her employment
The Tribunal must consider whether a representation made in a claim for workers compensation is one made for purposes connected with …her employment. Ms Griffiths’ counsel contended that it may be more accurate to say that the representations here were made in connection with her injury/illness, not her employment. He pointed to two decisions of the Tribunal where contradictory views on this issue seem to have been expressed.
In Anderson Senior Member Cremean considered that a wrong date in a workers compensation claim form does not of itself invite the use of s 7(7). He observed (at [99]):
The thrust of section 7(7) is to cover those situations where persons deliberately misrepresent that they have not had a disease.
The Tribunal held that the applicant there – also an Australia Post employee – had not made a false representation by failing to disclose previous osteoarthritis in his left wrist when making a claim for left thumb – severe pain. The Senior Member also observed (at [109]):
…I express doubts, that in answering No to the question concerned the Applicant was making any representation for purposes connected with his employment. His purposes were connected with his injury/illness.
By contrast, in Kennedy and Comcare [2015] AATA 334, the Tribunal entertained no doubt that workers compensation claims are made for purposes connected with employment. There the applicant responded No to questions regarding previous similar injury or illness in two separate applications for compensation for adjustment disorder with depression and anxiety, despite having suffered previous bouts of depression. Deputy President Hack observed (at [35]):
MrKennedy’s answer “no” to the question “Have you ever had a similar symptom, injury or illness ...” cannot be seen otherwise than as a representation by him that he did not suffer, and had not previously suffered, from the conditions subject of the claim “adjustment disorder with depression and anxiety”. The fact that the representation was in a claim for compensation for a condition said to arise from events at MrKennedy’s workplace provides the obvious connection with his employment with the Commonwealth.
Mr Kennedy’s entitlement to compensation under both claims was disallowed pursuant to s 7(7).
The Tribunal in the present instance considers that the view expressed by Deputy President Hack is to be preferred. If a workers compensation claim is not considered an action taken in respect of employment, it is difficult to see what scope the exclusion in s 7(7) would have outside of an application for employment, yet this subsection refers to representations made at any time in connection with employment or proposed employment. This would imply, in my opinion, the intention that there be an ongoing operation for the subsection for the duration of an employee’s employment.
Wilful and false
Ms Griffiths’ claims that she had not previously suffered from an illness similar to anxiety, or anxiety and depression, are evidently false. Even excluding those episodes where the parties are in dispute as to the presence of mental illness, there are several instances in Ms Griffiths’ life where the evidence is plain that she did suffer from conditions of anxiety or depression. Insubstantial variations in the way her condition is described from time to time in the medical record does not detract from this fact. The history of her previous encounters with anxiety and depression is so pronounced, indeed, that is difficult to avoid the conclusion that her claims not to have previously suffered from them were deliberately untrue.
To have once ticked the wrong box in a long government form might be said to fall short of wilful misrepresentation, and might be excused as inadvertent mistake; to do so twice – on separate occasions a year apart – is less easy to characterise in this benign way. This hesitancy is reinforced by evidence of a lack of candour about her medical record in other contexts. Counsel for Australia Post put to the Tribunal that Ms Griffiths had omitted significant details of her psychiatric history when providing histories to Dr Allnutt, Dr Roldan and Dr Champion, and the Tribunal accepts that the evidence for this is strong.
It was put by Ms Griffiths’ counsel that the forms’ questions about previous illness lacked clarity and purpose. No guidance was offered to a claimant as to the meaning of the word similar, nor was a timescale suggested in which to itemise previous illness. No reference to the consequences of false answers was offered at this point in the forms (though it certainly was at the end of the forms), nor did anyone apparently issue an oral warning at the time she completed them about the dangers of falsehood. It was further suggested that an employee might reasonably think that the questions were about previous workplace-related illness. The absence of such protections or clarifications should lead, I infer the argument to be, to support for the conclusion that Ms Griffiths did not intend to wilfully mislead her employer.
These arguments are unpersuasive. The purpose and requirements that the questions demanded of Ms Griffiths are reasonably clear, in my opinion. They sought to discover whether previous illness of this type had occurred, so that the employer could explore whether that previous illness, and not the present asserted injury, was responsible for the employee’s condition. An employee failing to acknowledge previous illness in these circumstances would, in my opinion, knowingly be skating on very thin ice.
At any time
When Ms Griffiths applied for employment at Australia Post, she disclosed in her application form a previous condition of depression – temporary. There was some attention devoted in the hearing as to whether this was also a false representation. The Tribunal considers that it was not a false representation, on the basis that a layperson may honestly believe that a condition which had come and gone at intervals throughout her life might go again, leaving her unaffected by it in the future.
However, honesty in respect of this purpose connected with her employment does not relieve her of responsibility for the other occasions where honesty was absent. The words at any time in the subsection make it clear that an employee, or prospective employee, must make honest representations about their medical history on every occasion, not merely on some or most occasions, lest their entitlement be lost by dint of the subsection.
That disease
The exclusion operates where the employee misrepresents that he or she did not suffer from that disease, namely the disease the subject of the present claim. If the claim is for a disease which is not the same as the disease previously suffered from, the exclusion does not apply. Ms Griffiths put to the Tribunal that the policy evidently behind the subsection:
… would be best served by requiring that there be some kind of continuous link between the earlier condition… and the later condition… In short, they should either be the same “disease” (not two episodes of “disease” carrying the same description), or the earlier “disease” should at least have some causal connection with the later manifestation of “disease” for which compensation is claimed.
The Tribunal would hesitate, in effect, to read down the provisions of s 7(7) in this way. It is reasonable to argue that the disease in each of these instances needs to have the same general clinical description, but to require that the claimed condition be a recurrence of the earlier condition for the exclusion to operate is, with respect, an interpretation not open from the ordinary meaning of the subsection’s words, nor is it an interpretation which has been previously applied by courts or tribunals so far as I am aware. Even if this were the appropriate reading of the subsection, the Tribunal considers that on balance the evidence discloses the postulated connection between at least some of the previous instances of depression in Ms Griffiths’ life and the depression for which she claimed compensation in 2014 and 2015.
Conclusion
The Tribunal is satisfied that Ms Griffiths made wilfully false representations to Australia Post about her previous experience of anxiety/depression when she lodged workers compensation claims in August 2014 and August 2015. The fact that these representations were no more, in each case, than a tick in a circle makes them no less false or deliberate. Courts and tribunals have tended to set a high bar for an employer to access the exemption in s 7(7); JXTZ is a recent example of this. However, it is harder to imagine a clearer case where the exemption would apply than the present instance. Indeed, if the exemption does not apply in the present circumstances it is difficult to conceive of circumstances where it ever would.
Because s 7(7) is an absolute bar to compensation, notwithstanding the general merits of an applicant’s claim, Ms Griffiths’ applications must fail despite the Tribunal’s findings below. For the sake of completeness, the Tribunal outlines in general terms its view of the other key contentions put by the parties at the hearing.
DID MS GRIFFITHS’ EMPLOYMENT SIGNIFICANTLY CONTRIBUTE TO HER INJURY?
It was common ground between the parties, and the Tribunal accepts, that Ms Griffiths’ psychological condition was a disease pursuant to s 5B of the Act. That section provides:
(1) In this Act:
"disease" means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
"significant degree " means a degree that is substantially more than material.
Australia Post put to the Tribunal that Ms Griffiths’ employment did not make a significant contribution to that disease. It based this contention on Ms Griffiths suffering from a long-standing condition commencing in early childhood which was most probably a borderline personality disorder, and that it was this disorder, and not her employment, which wholly or overwhelmingly accounted for the condition she suffered from in July 2014. In doing so, it relied principally on the evidence given by Dr Fernando Roldan and Dr John Champion. Ms Griffiths, in turn, relied on the evidence of Dr Steven Allnutt; she also argued that the opinion of Drs Roldan and Champion – that she most likely suffered from borderline personality disorder – was inconsistent with the widely-accepted psychiatric diagnostic tool DSM-5, and so should be disregarded.
Did Ms Griffiths suffer a borderline personality disorder?
Australia Post asserted that Ms Griffiths had suffered a long and rich psychiatric history. As well as the episodes of mental illness referred to above, it contended that there was a family history of depression and bipolar disorder, and that Ms Griffiths herself suffered mental illness as a child. This evidence however was contested by Ms Griffiths.
Dr Roldan examined Ms Griffiths on 16 April 2015, and Dr Champion did so on 25 May 2015. In their subsequent reports, each doctor suggested that she had suffered from an adjustment disorder in July 2014. However, it appears that an incomplete history of her relevant psychiatric health was supplied to both doctors, and in later reports – as well as in evidence before the Tribunal – they adopted a different diagnosis. In a report dated 20 March 2016, Dr Champion commented:
It has been noted at several points in the history that a diagnosis of Borderline Personality Disorder (BPD) has been considered. Those who suffer with BPD have problems with self esteem and close personal relationships, producing anxiety and depressive episodes resulting from maladaptive perceptions from early life which continues through the adult years… on the basis of this further information I consider it probable that Ms Griffiths suffers with a significant Borderline Personality Disorder which is the basis of recurring problems in her personal life and which is, on the basis of probability, the cause of the maladaptive perceptions resulting in her ceasing work for Australia Post in 2014.
… the claimed work related mental illness was in fact a continuation of chronic mental health problems associated with underlying Borderline Personality Disorder suffered by Ms Griffiths… it is my view that Ms Griffiths is a person with a significant Borderline Personality Disorder affecting all aspects of her life and that her absence from the workplace in 2014 is part and parcel of the constitutionally based disorder… it is my view that Ms Griffiths is an individual whose mental illness has affected her in the workplace, rather than an individual whose workplace has produced an injury. She will however continue to perceive herself as a victim.
Dr Roldan, with a full picture of her psychiatric history before him, gave evidence to this effect:
Well in my opinion she appears to have a much more pervasive history of mood disorder than I was led to believe initially. Also, her history – her background history appears to be much more complex than what I – the impression I derived from the history that was provided to me initially. To me she – the history that is available now appears to indicate that there is basically an underlying difficulty that is chronic with dysphoric mood. This is typical of borderline personality disorder which is – and that basic underlying mood disorder is at times interrupted or disrupted if you like by crisis points – by periods of anger, by periods of hyper reactivity to certain events. That is also consistent with the nature of personality disorder – borderline personality disorder.
With respect to the various episodes of stress in her earlier life, he commented:
They’re connected. In my view they’re likely to be connected by an underlying personality disorder.
Dr Allnutt also gave evidence to the Tribunal. Notwithstanding receiving further information about her psychiatric history, he considered that his original diagnosis of adjustment disorder held good, although – with respect to borderline personality disorder – he told the Tribunal:
I am not saying that she doesn’t have it. What I’m saying is that based on the information provided one cannot give weight because one can’t differentiate with her history between whether she is borderline in depression - depression with borderline traits or purely depressive disorder. I don’t think she has purely got borderline personality disorder without depression, let me say that. It’s certainly depression but one can’t differentiate those and you’ve got to be very careful.
The thrust of this medical evidence supports a finding that Ms Griffiths did indeed suffer from borderline personality disorder, or something closely akin thereto, in July 2014. Her argument to the Tribunal, however, was that these opinions – particularly by Drs Roldan and Champion – were inconsistent with the methodology for diagnosing the condition set out in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). In particular, attention was drawn to the following passage:
Borderline Personality Disorder: A pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:
1Frantic efforts to avoid real or imagined abandonment (not including suicidal behaviour);
2A pattern of unstable and intense interpersonal relationships that alternate between extremes of idealization and devaluation;
3Identity disturbance: markedly and persistently unstable self-image or sense of self;
4Impulsivity in at least two areas that are potentially self-damaging (not including suicidal behaviour), such as excessive spending, unprotected sex, substance abuse, reckless driving, and/or binge eating;
5Recurrent suicidal behaviour, gestures, or threats or self-mutilating behaviours;
6Affective instability due to a marked reactivity or mood, such as intense episodic dysphoria, irritability, or anxiety lasting between a few hours and a few days;
7Chronic feelings of emptiness;
8Inappropriate, intense anger or difficulty controlling anger; and
9Transient, stress-related paranoid ideation or severe disassociated symptoms.
Counsel for Ms Griffiths then took the Tribunal through detailed submissions in which it was argued that the evidence before the Tribunal simply could not support a finding that at least five of the diagnostic criteria could be identified as applying in the facts of this case, and that a failure to so identify the criteria should lead the Tribunal to determine that, notwithstanding the opinion of the doctors, a diagnosis of borderline personality disorder could not be made out.
It is, of course, open to a party in proceedings to question or challenge the weight to be given to expert evidence. Indeed, an expert witness must be prepared not only to provide his or her opinion but also to demonstrate the reasoning which leads him or her to the conclusions put before the Tribunal. The British Supreme Court considered the principles operating in this regard in Kennedy v Cordia (Services) LLP [2016] UKSC 6 at [38]-[71], where Lord Reed and Lord Hodge (with whom Lady Hale, Lord Wilson and Lord Toulson agreed) observed (at [48]-[49]):
48. An expert must explain the basis of his or her evidence when it is not personal observation or sensation; mere assertion or “bare ipse dixit” carries little weight, as the Lord President (Cooper) famously stated in Davie v Magistrates of Edinburgh 1953 SC 34, 40. If anything, the suggestion that an unsubstantiated ipse dixit carries little weight is understated; in our view such evidence is worthless. Wessels JA stated the matter well in the Supreme Court of South Africa (Appellate Division) in Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976 (3) SA 352, 371:
“[A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.”
As Lord Prosser pithily stated in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604: “As with judicial or other opinions, what carries weight is the reasoning, not the conclusion.”
49. In Davie the Lord President at p 40 observed that expert witnesses cannot usurp the functions of the jury or judge sitting as a jury. Recently, in Pora v The Queen [2015] UKPC 9; [2016] 1 Cr App R 3, para 24, the Judicial Committee of the Privy Council in an appeal from New Zealand, stated:
“It is the duty of an expert witness to provide material on which a court can form its own conclusions on relevant issues. On occasions that may involve the witness expressing an opinion about whether, for instance, an individual suffered from a particular condition or vulnerability. The expert witness should be careful to recognise, however, the need to avoid supplanting the court’s role as the ultimate decision-maker on matters that are central to the outcome of the case.”
Thus, while on occasion in order to avoid elusive language the skilled witness may have to express his or her views in a way that addresses the ultimate issue before the court, expert assistance does not extend to supplanting the court as the decision-maker. The fact-finding judge cannot delegate the decision-making role to the expert.
Applying this framework, I consider the it is open to Ms Griffiths, in principle, to invite the Tribunal to reject this medical evidence – or at least give it less weight – if it appears not to be based on the sound application of widely-accepted scientific criteria relied upon by the witnesses’ peers.
In the present instance, however, the Tribunal is not persuaded that this conclusion can be reached. It does not appear as if the approach taken of assigning particular value to each criterion and then requiring that a certain numerical threshold be reached is supported by a broader reading of DSM-5. Indeed, the diagnostic tool itself contains these warnings:
The case formulation for any given patient must involve a careful clinical history and concise summary of the social, psychological, and biological factors that may have contributed to developing a given mental disorder. Hence, it is not sufficient to simply check off the symptoms in the diagnostic criteria to make a mental disorder diagnosis… the symptoms in our diagnostic criteria are part of the relatively limited repertoire of human emotional responses to internal and external stressors that are generally maintained in a homeostatic balance without a disruption in normal functioning. It requires clinical training to recognise when the combination in normal functioning. It requires clinical training to recognise when the combination of predisposing, precipitating, perpetrating, and protective factors have resulted in a psychological condition in which physical signs and symptoms exceed normal ranges… it is impossible to capture the full range of psychopathology in categorical diagnostic categories that we are now using.
…
It is important to note that the definition of mental disorder included in DSM-5 was developed to meet the needs of clinicians, public health professionals, and research investigators rather than all of the technical needs of Courts and legal professionals… when DSM-5 categories, criteria and textual descriptions are employed for forensic purposes, there is a risk that the diagnostic information will be misused or misunderstood… use of DSM-5 to assess for the presence of a mental disorder by non clinical, non medical, or otherwise insufficiently trained individuals is not advised.
Overall, the Tribunal regards the evidence put by Drs Roldan and Champion in relation to the postulated diagnosis as being broadly consistent with the evidence placed before it. It would, therefore, be inclined to make a finding to this effect, if such a finding were relevant to the determination of this matter. For the reasons provided below, the Tribunal does not regard such a finding helpful in disposing of the issues it faces.
Did Ms Griffiths’ work contributed significantly to her disease?
Even if the Tribunal were to find that Ms Griffiths was afflicted by a psychological condition such as borderline personality disorder, it does not follow that any manifestation of mental illness during the period she was so afflicted must have been solely or substantially the product of that condition. In fact, the presence of a condition such as BPD, as the medical evidence indicated, would make her more vulnerable to psychological damage from other sources. It is entirely conceivable in these circumstances that work-related stresses might, for example, aggravate any underlying psychological condition so as to constitute a compensable injury caught by s 5B. Nothing in the medical evidence precluded the possibility that Ms Griffiths may have suffered a co-morbid condition which was contributed to by her employment. Indeed, that appears to have been precisely the view of Dr Allnutt as to what occurred.
The parties agreed that the test of a work-related psychological injury was properly stated by von Doussa J in Wiegand v Comcare [2002] FCA 1464 at [31]:
In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegandraised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by MrWiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.
It seems to the Tribunal, applying this test, that two matters need to be established for Ms Griffiths to succeed in this aspect of her application. First, she needs to show that the incidents giving rise to her asserted injury actually occurred and, secondly, her perception of those incidents needs to have contributed to a significant degree to the injury she then suffered.
Did the workplace incidents occur?
Evidence was led of a succession of workplace incidents at the Riverina Mail Sorting Centre which affected Ms Griffiths over the period commencing soon after she began work there in 2011 until a final straw incident on 26 July 2014. Witnesses were called by both sides in relation to these incidents. Those incidents include the following:
·the provision by fellow employees of inconsistent advice about the sorting of mail into letter trays;
·being told by a fellow employee she had to rotate her duties;
·numerous interventions by fellow employees offering instruction or making criticism as to how Ms Griffiths was doing her job;
·an incident on 7 June 2012 where Ms Griffiths was sworn at;
·a further incident on 11 September 2012 where she was sworn at;
·an incident on 27 February 2013 where the night manager told fellow staff that Ros is whingeing again;
·an incident on 1 March 2013 where the night manager ignored her advice about the way mail should face in a sorting machine;
·fellow staff making things difficult for her in the week beginning 21 July 2014 while she was an acting supervisor;
·an altercation with co-worker Harold Norris on 24 July 2014 concerning a fan setting;
·the apparent misplacement of a piece of equipment on 25 July 2014; and
·an altercation with Harold Norris on 26 July 2014 regarding the volume setting of a radio (the final straw).
It is unnecessary to recite the detail of the various witnesses’ accounts of these incidents. For the most part, the variations in recollection were of little moment and had little bearing on resolution of the essential issues facing the Tribunal.
A number of conclusions can, however, be drawn with assurance about this evidence. First, each of these incidents were – with the possible exception of the final straw incident – trivial matters when taken individually. Secondly, they suggest, taken cumulatively, that there was ongoing workplace friction between Ms Griffiths (or Ms Griffiths and certain co-workers) and certain other employees at the mail sorting centre. Thirdly, the incidents which Ms Griffiths asserted contributed to her mental condition did actually occur – not necessarily precisely as she described, but in one form or another. Any suggestion that the incidents were solely the product of Ms Griffiths’ imagination cannot be sustained, as the video footage shown to the Tribunal of the final straw incident on 26 July 2014 clearly demonstrated.
As von Doussa J stated in Wiegand (at [31]):
… there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness.
The first test in Wiegand is clearly established in the present matter. The workplace injury occurred.
Did those workplace incidents contribute to a significant degree to her injury?
Dr Allnutt’s opinion was that Ms Griffiths suffered a chronic adjustment disorder associated with experiences of bullying and harassment at Australia Post. He considered, in his report dated 17 March 2015, that by the time she commenced with Australia Post in July 2011 she had come to terms with earlier matters in her life that had generated depression and anxiety. The final straw issue with the radio on 26 July 2014 was a triggering incident, in his opinion.
Dr Roldan and Dr Champion also initially took the view that work-related incidents had contributed to a significant degree to the onset of a psychological condition. On being furnished with a more complete psychiatric history, both doctors tended to the view that the manifestation of illness during her employment was due to an (undiagnosed) borderline personality disorder, although Dr Roldan found a conclusion on this question more difficult to reach than Dr Champion. Dr Champion thought that the idea that work-related issues had aggravated her pre-existing mental state was a possibility but not a probability. The important observation to make here, however, is that all three doctors were of the opinion that the events which took place at the mail sorting centre, trivial though they were, were capable of causing the onset of a psychological condition.
The difficulty the Tribunal has in accepting the evidence put by Drs Roldan and Champion is that it is premised on Ms Griffiths developing a psychological condition in mid-2014 which bears little relationship with the events taking place at her work. As already indicated, the Tribunal is persuaded that those events did occur, and were most likely symptoms of a tense relationship between Ms Griffiths and fellow workers. The events were, in the Tribunal’s opinion, not the product purely of Ms Griffiths’ perception of the behaviour of her fellow employees.
The thesis advanced by Drs Roldan and Champion assigns to a borderline personality disorder an all-encompassing responsibility for Ms Griffiths’ mental state in mid-2014, despite the fact that she has never been diagnosed by a treating psychiatrist with that condition. Conversely, it excludes any role for the recurrence of other psychiatric conditions for which she has been diagnosed over her lifetime, such as the depression diagnosed by Dr Patterson in November 2008. Taking into account the testimony regarding some crossover in the symptoms attributable to BPD and, say, depression, there is good reason to prefer the view of Dr Allnutt that, at the relevant time, Ms Griffiths was suffering an adjustment disorder against an underlying vulnerability to depression.
The Tribunal finds that Ms Griffiths was under treatment for a mental health condition when she began work at Australia Post in mid-2011, but all the evidence suggests that this treatment finished by the end of that year and that there were no other indicators of mental distress until mid-2014. Similarly, there was no evidence before the Tribunal of any stressors external to her workplace over this period. Even accepting the likelihood that Ms Griffiths had a borderline trait in her personality at this time, the temporal connection between events at her workplace and her need for psychiatric treatment at about the same time is persuasive that one was causative of the other.
CONCLUSION
The Tribunal is satisfied on the balance of probabilities that in July 2014 Ms Griffiths suffered an ailment, or an aggravation of an ailment, which was contributed to, to a significant degree, by her employment at Australia Post. However, the ailment cannot qualify as a compensable injury under the Act by virtue of the operation of s 7(7).
Accordingly, the reviewable decisions of 3 December 2014 and 12 October 2015 are affirmed.
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
........................[sgd]................................................
Associate
Dated: 4 July 2017
Date(s) of hearing: 17, 18, 19, 20 May 2016 / 11 August 2016 Date final submissions received: 21 December 2016 Counsel for the Applicant: Leo Grey Solicitors for the Applicant: CommComp Lawyers Counsel for the Respondent: Paul Jones Solicitors for the Respondent: Graham Jones Lawyers
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